Notes. Challenging Extradition: The Doctrine of Specialty in Customary International Law

Transcription

1 Notes Challenging Extradition: The Doctrine of Specialty in Customary International Law The doctrine of specialty, a fundamental feature of extradition law, provides that a state may only prosecute an extradited individual for the offenses agreed to by the sending state. The doctrine, which protects a state s sovereign right to limit its surrender of an individual, is widely codified in bilateral extradition treaties. Absent a treaty, when extraditions take place on the basis of comity or executive agreement, U.S. and foreign courts differ on whether specialty applies as a matter of customary international law. Moreover, multilateral treaties containing an obligation to extradite do not include specialty provisions, raising the question of whether states would be bound to respect the doctrine when extraditing pursuant to such treaties. This Note examines jurisprudence in the United States, foreign courts, and international tribunals, and demonstrates that specialty is not applied consistently as a norm of customary international law. To the contrary, while national courts have relied on national legislation or read specialty into a bilateral treaty which was silent on the matter, few courts have maintained that the doctrine applies in the absence of a treaty, and those that have did not conduct a traditional customary international law analysis. Although this conclusion comports with the historically contractual nature of extradition, recent jurisprudence also

2 364 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:363 shows an increased willingness to decline jurisdiction over individuals obtained illegally. This Note concludes that a customary norm of specialty would become a necessary corollary should an obligation either to refuse jurisdiction in certain circumstances, or to prosecute or extradite, emerge in customary international law. INTRODUCTION I. THE DOCTRINE OF SPECIALTY AND THE DEVELOPMENT OF EXTRADITION LAW A. Modern Extradition Regimes B. Customary International Law, Treaties, and Comity II. SPECIALTY IN NATIONAL AND INTERNATIONAL PRACTICE A. The United States Conflict on Specialty B. Foreign Jurisprudence C. International Tribunals III. CURRENT LIMITS ON SPECIALTY AND EMERGING PRINCIPLES A. Implications for U.S. Law B. Implications for International Extradition Emerging Custom Multilateral Treaties and the Obligation to Extradite or Prosecute CONCLUSION INTRODUCTION Extradition, the process of requesting and sending a fugitive offender to a state for prosecution, has been a feature of relations between states for centuries. 1 Modern extradition law contains several widely recognized rules, 2 including the doctrine of specialty. 3 This 1. See M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 1 (5th ed. 2007). 2. See Report of the Int l Law Comm n, Working Group on the Obligation to Extradite or Prosecute (aut dedere aut judicare), 28, U.N. Doc. A/CN.4/L.829 (July 22, 2013); M. CHERIF BASSIOUNI, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW 501 (2d ed. 2012).

3 2015] CHALLENGING EXTRADITION 365 doctrine, which is codified in numerous bilateral extradition treaties 4 and regional extradition schemes, 5 provides that after receiving a fugitive through extradition, a state may only prosecute the individual for the offenses agreed to by the sending state as the basis for extradition. 6 Specialty serves as a safeguard against prosecutions for political offenses and violations of other substantive rules of extradition law, such as the requirement that an extraditable offense be proscribed in both states and the principle of non bis in idem, protection from being tried twice for the same crime. 7 While the doctrine of specialty is often included in extradition treaties, extraditions can also take place on the basis of comity between nations or treaties that do not expressly include specialty. 8 In such cases, scholars and courts disagree as to whether specialty should apply. Several scholars assert that specialty is now a norm of customary international law but do not analyze modern practice, 9 3. See CLIVE NICHOLLS ET AL., THE LAW OF EXTRADITION AND MUTUAL ASSISTANCE 85 (3d ed. 2013); Int l Law Comm n, Final Report of the Working Group on the Obligation to Extradite or Prosecute (aut dedere aut judicare), 36, U.N. Doc. A/CN.4/L.844 (June 5, 2014). 4. See U.S. DEP T OF JUSTICE, UNITED STATES ATTORNEYS MANUAL (2009) ( [A]ll extradition treaties restrict prosecution or punishment of the fugitive to the offense for which extradition was granted.... This limitation is referred to as the Rule of Specialty. ); see, e.g., Extradition Treaty, U.S.-U.K., art. 18, Mar. 31, 2003, T.I.A.S. No ; Extradition Treaty, U.S.-S. Afr., art. 17, Sept. 16, 1999, T.I.A.S. No ; Extradition Treaty, U.S.-India, art. 17, June 25, 1997, T.I.A.S. No ; Treaty on Extradition, U.S.- Arg., art. 16, June 10, 1997, T.I.A.S. No ; Extradition Treaty, U.S.-Fr., art. 19, Apr. 23, 1996, T.I.A.S. No ; Extradition Treaty, U.S.-Jordan, art. 16, Mar. 28, 1995, S. TREATY DOC. NO ; Treaty on Extradition, U.S.-Hung., art. 17, Dec. 1, 1994, T.I.A.S. No ; Extradition Treaty, U.S.-Phil., art. 13, Nov. 13, 1994, T.I.A.S. No ; Extradition Treaty, U.S.-It., art. 16, Oct. 13, 1983, 35 U.S.T. 3023; Extradition Treaty, U.S.- Costa Rica, art. 16, Dec. 4, 1982, S. TREATY DOC. NO ; Treaty on Extradition and Cooperation in Penal Matters, U.S.-Uru., art. 13, Apr. 6, 1973, 35 U.S.T See, e.g., Inter-American Convention on Extradition art. 13, Feb. 25, 1981, 1752 U.N.T.S. 191; European Convention on Extradition art. 14, Dec. 13, 1957, 359 U.N.T.S See Model Treaty on Extradition, G.A. Res. 45/116, art. 14, U.N. Doc. A/RES/45/116 (Dec. 14, 1990). 7. See Gavan Griffith & Claire Harris, Recent Developments in the Law of Extradition, 6 MELB. J. INT L L. 33, 51 (2005); U.N. High Commissioner for Refugees, The Interface between Extradition and Asylum, 254, PPLA/2003/05 (Nov. 2003), available at 8. See, e.g., United States v. Kaufman, 858 F.2d 994, 1007 n.4 (5th Cir. 1988); Fiocconi v. Att y Gen. of the U.S., 462 F.2d 475, (2d Cir. 1972). 9. See ILIAS BANTEKAS & SUSAN NASH, INTERNATIONAL CRIMINAL LAW 300 (3d ed. 2007) ( The specialty principle is so broadly recognised in international law and practice

4 366 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:363 while others dispute the existence of a customary rule. 10 The debate is particularly important given the rise of multilateral treaties containing an obligation to prosecute or extradite or otherwise allowing for extradition. 11 These treaties, which range in subject matter from human rights to corruption, usually provide that, in the absence of a bilateral treaty, the multilateral treaty can serve as a basis for extradition for enumerated crimes. 12 Such provisions inherently provide for dual criminality, as the treaties define the extraditable crimes, but frequently do not include a specialty limitation. Instead, treaties simply state that extraditions are subject to the domestic law of the that it has customary international law status.... ); BASSIOUNI, supra note 1, at 538 ( Specialty is frequently referred to as a principle because it is so broadly recognized in international law and practice that it has become a rule of customary international law. ); Jacques Semmelman, The Doctrine of Specialty in the Federal Courts: Making Sense of United States v. Rauscher, 34 VA. J. INT L L. 71, 79 (1993) ( Specialty, however, remains a principle of customary international law.... ). 10. See Asian-African Legal Consultative Committee, Articles Containing the Principles Concerning Extradition of Fugitive Offenders, in REPORT OF THE FOURTH SESSION, TOKYO, 1961 at (1961) ( The rule of speciality is usually embodied in extradition treaties but there is no universally recognized rule of customary international law in this matter and State practice is widely divergent. ); M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 546 (6th ed. 2014) (discussing new U.S. case law on specialty and finding, in contrast to the conclusion in the 2007 edition of his book, that because of conflicting court decisions, it is unclear whether the principle of specialty is part of CIL [or customary international law], and the discussion is not yet finished ); NEIL BOISTER, AN INTRODUCTION TO TRANSNATIONAL CRIMINAL LAW 222 (2012) ( [Specialty] has been claimed to be customary, but in some legal systems if the particular treaty or national law does not specifically enforce specialty, it may not be applied. ); Mark A. Summers, Rereading Rauscher: Is It Time for the United States to Abandon the Rule of Specialty?, 48 DUQ. L. REV. 1, 3 (2010) ( [S]pecialty has never been more than a rule of international comity. ). 11. See BASSIOUNI, supra note 1, Appendix I, for a list of treaties including an obligation to punish or extradite. 12. See, e.g., United Nations Convention Against Corruption art. 44, Oct. 31, 2003, T.I.A.S. No , 2349 U.N.T.S. 41 [hereinafter UNCAC]; United Nations Convention Against Transnational Organized Crime art. 16, Nov. 15, 2000, S. TREATY DOC. NO , 2225 U.N.T.S. 209; International Convention for the Suppression of the Financing of Terrorism art. 11, Dec. 9, 1999, S. TREATY DOC. NO , 2178 U.N.T.S. 197; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 8, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT]; International Convention Against the Taking of Hostages art. 10, Dec. 17, 1979, T.I.A.S. No , 1316 U.N.T.S. 205; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation art. 8, Sept. 23, 1971, T.I.A.S. No. 7570, 974 U.N.T.S. 177 [hereinafter Montreal Hijacking Convention]; Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others art. 8, Mar. 21, 1950, 96 U.N.T.S. 271; Convention on the Prevention and Punishment of the Crime of Genocide art. VII, Dec. 9, 1948, 78 U.N.T.S. 277.

5 2015] CHALLENGING EXTRADITION 367 sending state. 13 With the status of specialty in customary international law undefined, states may find their expectations that the principle will apply frustrated with regard to extraditions based on silent treaties or comity. This, in turn, undermines the goal of effective transnational law enforcement. American jurisprudence demonstrates the import of this question. The Supreme Court recognized the doctrine of specialty in 1886 in United States v. Rauscher, in which it read the doctrine into a bilateral extradition treaty without an express specialty provision. 14 Circuit courts interpreting Rauscher have reached varying conclusions on when the doctrine can be invoked, and the Supreme Court has not subsequently addressed specialty. 15 The primary and muchdiscussed issue is standing, with circuits split on when an individual has the right to raise the doctrine as codified in a treaty. 16 The few circuits that have addressed the applicability of specialty to extraditions outside of treaties have reached divergent conclusions on whether the principle exists under customary international law. 17 Whether the United States may add additional charges after an extradition based on comity, or a treaty lacking an express specialty provision, therefore varies widely by jurisdiction. An examination of domestic and international applications of the doctrine of specialty outside of bilateral treaties demonstrates that the doctrine of specialty is not applied consistently. Part I of this Note discusses the function of the doctrine in extradition law and offers a framework for assessing specialty in customary international law. Part II examines jurisprudence in the United States, foreign courts, and international tribunals, focusing on cases addressing the application of specialty to extraditions outside of treaties. Part III considers the ramifications of the conclusion that specialty is not an independent customary norm both for U.S. extradition law and for 13. See, e.g., UNCAC, supra note 12, art. 44(8). 14. See United States v. Rauscher, 119 U.S. 407, 430 (1886). 15. See infra Part III.A. 16. Compare United States ex rel. Saroop v. Garcia, 109 F.3d 165 (3d Cir. 1997), and United States v. Munoz-Solarte, 28 F.3d 1217 (7th Cir. 1994), cert. denied, 115 S. Ct. 600 (1994), with United States v. Thirion, 813 F.2d 146, 151 n.5 (8th Cir. 1987), United States v. Andonian, 29 F.3d 1432 (9th Cir. 1994), and United States v. Puentes, 50 F.3d 1567, 1569 (11th Cir. 1995). See BASSIOUNI, supra note 1, at 543, ; Semmelman, supra note 9, at ; Roberto Iraola, The Doctrine of Specialty and Federal Criminal Prosecutions, 43 VAL. U. L. REV. 89, (2008). 17. See United States v. Valencia-Trujillo, 573 F.3d 1171, 1179 (11th Cir. 2009); United States v. Kaufman, 858 F.2d 994, 1007 n.4 (5th Cir. 1988); Fiocconi v. Att y Gen. of the U.S., 462 F.2d 475, 479 n.8 (2d Cir. 1972).

6 368 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:363 multilateral instruments that do not expressly embrace the doctrine. I. THE DOCTRINE OF SPECIALTY AND THE DEVELOPMENT OF EXTRADITION LAW States have long utilized extradition as a means of obtaining fugitives. Some early scholars argued that international law required states to either extradite or punish criminals domestically, characterizing extradition as an obligation. 18 From the nineteenth century onward, governments and legal experts regarded extradition as a sovereign act, to which states could consent either by agreement with another state or through their own national legislation. 19 Agreements to extradite in the nineteenth and twentieth centuries primarily took the form of bilateral extradition treaties between states. 20 The specialty doctrine is incorporated in many of these treaties. 21 The principle emerged from the French concept of spécialité, or particularity. 22 The United Nations Model Treaty on Extradition, adopted by the General Assembly as a framework for states in negotiating bilateral agreements, includes a suggested specialty provision: 1. A person extradited under the present Treaty shall not be proceeded against, sentenced, detained, reextradited to a third State, or subjected to any other restriction of personal liberty in the territory of the requesting State for any offence committed before surrender other than: (a) An offence for which extradition was granted; (b) Any other offence in respect of which the requested State consents. Consent shall be given if the offence for which it is requested is itself subject to extradition in accordance with the present Treaty. 23 By agreeing to surrender an individual to another state on cer- 18. See HUGO GROTIUS, DE JURE BELLI AC PACIS ch. 21, 3 4 (2d ed. 1631); 2 EMERICH DE VATTEL, LE DROIT DES GENS ch. 6, (1758). 19. See BASSIOUNI, supra note 1, at 7, 25 (noting that the obligation to prosecute or extradite is now discussed in the context of international crimes). 20. See id. at See id.; see also U.S. DEP T OF JUSTICE, supra note 4, See BASSIOUNI, supra note 1, at 538 (noting that specialty is also called speciality in some jurisdictions and is referred to in different jurisdictions as a principle, doctrine, and rule). 23. Model Treaty on Extradition, G.A. Res. 45/116, art. 14, U.N. Doc. A/RES/45/116 (Dec. 14, 1990).

7 2015] CHALLENGING EXTRADITION 369 tain charges, an extraditing state confirms that those charges meet the relevant treaty or legislative requirements, which typically include dual criminality and limitations on extraditable offenses. 24 The substantive requirements of extradition are thus only as strong as the extent to which the principle of specialty is observed. 25 Specialty serves to protect against misuse of the extradition process. A. Modern Extradition Regimes The specialty doctrine was incorporated in early extradition treaties in the nineteenth century and in many bilateral treaties developed in the twentieth century. The International Law Commission (ILC) noted in 2013 that specialty is now a feature of the extradition law of most, if not all, States. 26 More recently, specialty has also been codified in regional multilateral extradition treaties. The European Convention on Extradition, adopted in 1957 by the Council of Europe, proscribes states from prosecuting an extradited individual for any offense committed prior to his surrender other than that for which he was extradited, unless the sending state consents. 27 The 1981 Inter-American Convention on Extradition likewise provides that an individual extradited under the Convention shall not be tried for an offense, committed prior to the date of the request for extradition, other than that for which the extradition has been granted, absent approval by the sending state. 28 Despite the increase in extradition agreements, extraditions continue to take place outside of treaties on the basis of comity, as seen in U.S. jurisprudence. 29 Additionally, a range of multilateral treaties now codify an obligation to extradite or, in some cases, to either extradite or prosecute and provide that the offenses enumerated in the treaty must constitute extraditable offenses between the states parties. 30 However, these treaties largely do not specify procedural requirements, noting only that extradition is subject to the laws 24. See BASSIOUNI, supra note 1, at Griffith & Harris, supra note 7, at Report of the Int l Law Comm n, supra note 2, European Convention on Extradition, supra note 5, art Inter-American Convention on Extradition, supra note 5, art See, e.g., United States v. Kaufman, 858 F.2d 994 (5th Cir. 1988); Fiocconi v. Att y Gen. of the U.S., 462 F.2d 475 (2d Cir. 1972). 30. For a list of treaties that include an obligation to punish or extradite, see generally BASSIOUNI, supra note 1, Appendix I. See also Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, supra note 12, art. 8.

8 370 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:363 of the sending state. The Genocide Convention states that genocide and related crimes cannot be considered political crimes and requires parties to pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force. 31 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) codifies an obligation to extradite, and it provides that the enumerated offenses must be regarded as extraditable offenses under any extradition treaties between states parties or under nontreaty extradition procedures, subject to the conditions provided by the law of the requested State. 32 This construction is found in a number of other international conventions. 33 For states parties to these conventions, the dual criminality requirement and political offense exception are inherent in the text, as the treaties specify the extraditable offenses. However, for treaties that are silent with regard to specialty, the principle would only apply if it were either implicit in the treaty or bound states as a norm of customary international law. A recent International Court of Justice (ICJ) case on the obligation to extradite or prosecute provides an example of a situation in which this question could arise. 34 The ICJ held Senegal responsible for failing to extradite or prosecute Hissène Habré, the former president of Chad accused of using torture, under Senegal s obligation as a party to the CAT. 35 While the ICJ focused on Senegal s failure to prosecute, Senegal could alternatively have extradited Habré to Belgium, the state party that brought the case. 36 Senegal and Belgium do not have a bilateral extradition treaty. 37 Whether Belgian courts would have agreed to a specialty request 31. Convention on the Prevention and Punishment of the Crime of Genocide, supra note 12, art. VII. 32. CAT, supra note 12, art See International Convention for the Suppression of the Financing of Terrorism, supra note 12, art. II; International Convention Against the Taking of Hostages, supra note 12, art. 10; Montreal Hijacking Convention, supra note 12, art. 8; see also UNCAC, supra note 12, art. 44 (noting additionally that an extradited individual is guaranteed fair treatment throughout the process, including all the rights and guarantees provided by the domestic law of the State Party in the territory of which that person is present ); United Nations Convention Against Transnational Organized Crime, supra note 12, art. 16 (same language as UNCAC). 34. See Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), 2012 I.C.J. 422 (July 20). 35. See id See id See REDRESS, EXTRADITING GENOCIDE SUSPECTS FROM EUROPE TO RWANDA: ISSUES AND CHALLENGES 10 (2008), available at publications/extradition_report_final_version_sept_08.pdf.

9 2015] CHALLENGING EXTRADITION 371 from Senegal to limit Belgium to prosecuting only requested crimes codified in the CAT is uncertain. B. Customary International Law, Treaties, and Comity The primary challenge of establishing customary norms relating to extradition law is the contractual nature of the modern extradition regime. Customary international law is formed by widespread and consistent state practice with corresponding opinio juris, a belief that the practice is required by a rule of law. 38 Custom, unlike treaties, binds all states, and thus applies in the absence of a treaty. 39 For specialty to be a norm of extradition law, states must both widely utilize the doctrine and express that they do so out of a sense of legal duty. 40 Treaties can play significant roles in formulating custom. Treaties and custom are independent sources of international law and may be co-extensive, with a provision of a treaty also existing separately as a customary norm. 41 The ICJ noted that a treaty may simply codify preexisting custom, cause a customary norm to crystallize, or serve as opinio juris for the emergence of a subsequent rule. 42 Customary norms have crystallized through the adoption of treaties following a negotiation process between states resulting in agreement on a previously unresolved principle. 43 Whether a treaty serves as evidence of a custom thus depends on the nature of the treaty and subsequent state practice concerning the relevant treaty provision. The widespread inclusion of specialty provisions in bilateral treaties may serve as evidence of custom 44 and demonstrate a wealth of state practice, but it does not necessarily establish opinio juris See North Sea Continental Shelf Cases (Ger./Den., Ger./Neth.), 1969 I.C.J. 3, 77 (Feb. 20). 39. See JAMES CRAWFORD, BROWNLIE S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 33 (8th ed. 2012). 40. North Sea Continental Shelf Cases, supra note See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 177 (June 27). 42. See id.; see also Int l Law Comm n, Special Rapporteur on Formation and Evidence of Customary International Law, First Report on Formation and Evidence of Customary International Law, 34, U.N. Doc. A/CN.4/663 (May 17, 2013) (by Michael Wood). 43. See GIDEON BOAS, PUBLIC INTERNATIONAL LAW: CONTEMPORARY PRINCIPLES AND PERSPECTIVES (2012). 44. See CRAWFORD, supra note 39, at See id.

10 372 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:363 Extradition is historically a state prerogative, rather than an obligation. 46 While extradition itself is optional, however, customary norms can emerge concerning the substantive requirements to which states must adhere when they choose to extradite. 47 Accordingly, an assessment of specialty as a rule of customary international law must survey state practice, treaties, and statements concerning the principle, including extraditions pursuant to comity or based on treaties that are silent concerning specialty. Scholars asserting that specialty is custom 48 have not conducted a traditional customary international law analysis. 49 Likewise, the ILC, discussing treaties codifying an obligation to prosecute or extradite, notes that most states follow specialty but does not assess whether they do so out of treaty or customary obligations. 50 The widespread use of specialty might lead the ILC or other observers to determine that the principle is custom or assume that it is inherent in extradition treaties silent on the issue. Split jurisprudence among U.S. courts, which have reached divergent conclusions concerning the application of specialty to comity-based extraditions, demonstrates the unsettled nature of the doctrine. 51 II. SPECIALTY IN NATIONAL AND INTERNATIONAL PRACTICE A. The United States Conflict on Specialty Specialty is a longstanding point of contention within American jurisprudence. The federal extradition statutes do not include a judicial obligation to respect specialty. 52 The statute in relation to the 46. See BASSIOUNI, supra note 1, at See Summers, supra note 10, at See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 319 (5th ed. 1998) ( [S]ome courts, in giving extradition in the absence of a treaty, have abstracted from existing treaties and municipal provisions certain general principles of international law. The two leading principles are that of double criminality... and that of specialty, according to which the person surrendered shall be tried and punished exclusively for offences for which extradition had been requested and granted. ); see also BASSIOUNI, supra note 1, at 538; Semmelman, supra note 9, at See generally Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 AM. J. INT L L. 757 (2001). 50. See Report of the Int l Law Comm n, supra note 2, Compare Fiocconi v. Att y Gen. of the U.S., 462 F.2d 475 (2d Cir. 1972), and United States v. Kaufman, 858 F.2d 994 (5th Cir. 1988), with United States v. Valencia- Trujillo, 573 F.3d 1171 (11th Cir. 2009). 52. See 18 U.S.C (2012).

11 2015] CHALLENGING EXTRADITION 373 rights of the accused provides that the President has the power to take necessary measures to protect an extradited individual until the final conclusion of his trial for the offenses specified in the warrant of extradition, 53 but it does not refer to limitations on the jurisdiction of courts over additional offenses. 54 Instead, specialty provisions are typically codified in bilateral extradition treaties. 55 The seminal decision on specialty, and the only Supreme Court case to address the doctrine, is United States v. Rauscher, issued in Great Britain extradited Rauscher to the United States to stand trial for murder committed on an American ship on the high seas under the extradition clause of the bilateral Webster- Ashburton Treaty, which did not contain a specialty provision. 57 When Rauscher was instead charged with the lesser offense of cruel and unusual punishment, he argued that the U.S. courts lacked personal jurisdiction over him because the charge was outside the scope of the extradition order. 58 The Supreme Court determined that despite the absence of an express provision, a person who has been brought within the jurisdiction of the court, by virtue of proceedings under an extradition treaty, can only be tried for one of the offenses described in that treaty, and for the offense with which he is charged in the proceedings for his extradition. 59 The Court held that because this doctrine was implicit in the treaty, U.S. courts lacked jurisdiction over Rauscher with regard to the lesser charge. 60 After stressing that extradition is not an obligation under in U.S.C (2012). 54. See, e.g., United States v. Alvarez-Machain, 504 U.S. 655, 678 n.18 (1992) (stating that the precursor statutes containing similar language cited in United States v. Rauscher do not contain any language purporting to limit the jurisdiction of the court; rather, they merely provide for protection of the accused pending trial ); Fiocconi v. Att y Gen. of the U.S., 462 F.2d 475, 482 (2d Cir. 1972) ( No different conclusion is called for by 18 U.S.C Despite the narrower phrase used in the statute, we read the references to a predecessor act in Rauscher... as considering the statute to be merely congressional recognition of the principle that a person who has been extradited should not be tried for an offense which the foreign country would consider to be outside the limits of its act of extradition. ). 55. See MICHAEL JOHN GARCIA & CHARLES DOYLE, CONG. RESEARCH SERV., , EXTRADITION TO AND FROM THE UNITED STATES: OVERVIEW OF THE LAW AND RECENT TREATIES 2 (2010). 56. See United States v. Rauscher, 119 U.S. 407 (1886). 57. See id. at See id. at Id. at See id. at 433.

12 374 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:363 ternational law, 61 the Court noted that the concept of specialty complemented the discretionary nature of extradition, as it would be unreasonable in the absence of a treaty obligation to expect a state to surrender an individual to another state without any limitation, implied or otherwise, upon its prosecution of the party. 62 The Court also surveyed works of publicists and writers on international law, which maintained that a receiving state had no right to charge an offender for any offense other than the one for which he was specifically surrendered. 63 In concluding that the Webster-Ashburton treaty incorporated this principle, the Court explained that it was very clear that this treaty did not intend to depart in this respect from the recognized public law which had prevailed in the absence of treaties. 64 The Rauscher opinion has divided courts and academics on a range of issues. An ongoing debate concerns standing: circuit courts have reached varying conclusions on when a defendant has standing to raise an objection based on a specialty provision in a bilateral treaty. 65 The Rauscher decision has also split courts on the question of 61. See id. at Id. at Id. 64. Id. at A number of circuits have found that specialty is a right of the sending state, rather than an individual, holding that a defendant only has standing to the extent that the sending state has objected. See, e.g., United States ex rel. Saroop v. Garcia, 109 F.3d 165 (3d Cir. 1997); United States v. Munoz-Solarte, 28 F.3d 1217 (7th Cir. 1994), cert. denied, 115 S. Ct. 600 (1994). Other circuits allow a defendant to raise the doctrine to the extent that the state would be able to invoke the doctrine, even when a state is silent, as long as the state has not explicitly waived the right. See, e.g., United States v. Puentes, 50 F.3d 1567 (11th Cir. 1995); United States v. Andonian, 29 F.3d 1432 (9th Cir. 1994); United States v. Thirion, 813 F.2d 146 (8th Cir. 1987). These courts emphasize that extradition is based on principles of international comity and thus that an individual should be able to object and spare the sending state from having to formally object and potentially spur diplomatic tensions unless the sending state unequivocally approves the prosecution. Andonian, 29 F.3d at 1435; Thirion, 813 F.2d at 151. One circuit, citing Rauscher s description of specialty as a right conferred upon persons, found that a defendant has standing to challenge specialty without discussion of the protest or waiver by the sending state. United States v. Levy, 905 F.2d 326, 328 n.1 (10th Cir. 1990). This circuit split is enduring and well documented. See, e.g., BASSIOUNI, supra note 1, at 543, ; Semmelman, supra note 9, at ; Iraola, supra note 16 at 90 93; Mary-Rose Papandrea, Comment, Standing to Allege Violations of the Doctrine of Specialty: An Examination of the Relationship Between the Individual and the Sovereign, 62 U. CHI. L. REV (1995); Michael Bernard Bernacchi, Comment, Standing for the Doctrine of Specialty in Extradition Treaties: A More Liberal Exposition of Private Rights, 25 LOY. L.A. L. REV (1992); David Runtz, Note, The Principle of Specialty: A Bifurcated Analysis of the Rights of the Accused, 29 COLUM. J. TRANSNAT L L. 407, (1991); Jonathan George, Note, Toward

13 2015] CHALLENGING EXTRADITION 375 whether specialty is a principle of customary international law and thus applicable to extraditions outside of treaties. Federal legislation provides that, pursuant to comity, the United States may both request 66 and surrender 67 individuals outside of an extradition treaty. In the absence of a contrary legislative pronouncement, U.S. courts may apply customary international law as a form of federal common law. 68 A customary norm of international law concerning extradition could thus apply 69 and potentially create rights for both the surrendered individual and the surrendering state, either outside of an extradition treaty or when a treaty is silent with regard to specialty. Circuits applying Rauscher to such extraditions have reached divergent conclusions. In Fiocconi v. Attorney General, the Second Circuit considered an individual extradited by Italy to the United States on the basis of comity and found the principle of specialty applicable. 70 Writing for the court, Judge Friendly summarized the Supreme Court s reasoning in Rauscher, explaining that the Court found a rule of international law required that the receiving country should not try an extradited person for an offense for which the surrendering country would not have granted extradition; the treaty was important only as clarifying what offenses were or were not extraditable. 71 The Second Circuit then characterized Rauscher s challenged second prosecution as a violation of U.S. foreign relations law. 72 As the object of the doctrine was to prevent the United States a More Principled Approach to the Principle of Specialty, 12 CORNELL INT L L.J. 309 (1979). 66. See 18 U.S.C (2014). 67. See 18 U.S.C. 3181(b) (2014) (limiting surrender in the absence of a treaty to persons other than citizens, nationals, or permanent residents of the United States[] who have committed crimes of violence against nationals of the United States in foreign countries ). 68. See The Paquete Habana, 175 U.S. 677, 700 (1900) ( International law is part of our law.... [W]here there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.... ); Harold Hongju Koh, International Law as Part of Our Law, 98 AM. J. INT L L. 43 (2004); Semmelman, supra note 9, at 141. For a contrary view arguing that customary international law should not be considered federal law, see generally Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997). 69. See Paul Michell, English-Speaking Justice: Evolving Responses to Transnational Forcible Abduction After Alvarez-Machain, 29 CORNELL INT L L.J. 383, 395 (1996). 70. See Fiocconi v. Att y Gen. of the U.S., 462 F.2d 475 (2d Cir. 1972). 71. Id. at See id.

14 376 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:363 from violating its international obligations, a defendant only had standing to raise the doctrine, even under customary international law, to the extent that the surrendering state would regard the prosecution at issue as a breach. 73 Finding it unlikely that Italy would have objected in the case, the Second Circuit concluded that the defendant lacked standing, although the doctrine itself was not limited to the treaty context. 74 Twelve years later, the Fifth Circuit considered and broadly adopted the Fiocconi reasoning in United States v. Kaufman. 75 Two of the Kaufman defendants, Perry and Paddy Franks, were arrested by U.S. Drug Enforcement Agency agents and Mexican federal police in Mexico and returned to the United States on a commercial flight. 76 The Franks were taken to Louisiana and charged with participation in a narcotics conspiracy and later brought to Texas and charged with additional drug trafficking offenses. 77 The defendants argued that their removal from Mexico to Louisiana constituted an extradition and that the specialty provision in the U.S.-Mexico extradition treaty barred the subsequent charges in Texas. 78 The Fifth Circuit declined to determine whether the Franks removal constituted an extradition, finding that under Fiocconi, Mexico likely would not have objected to the Texas prosecution, and thus it would not constitute a violation of either the treaty or an independent rule of customary international law. 79 Citing Fiocconi, the court found, in dicta, that [t]he rule of specialty is a general rule of international law which applies with equal force whether extradition occurs by treaty or comity. 80 Most recently, the Eleventh Circuit considered specialty in United States v. Valencia-Trujillo, a case concerning an extradition from Colombia to the United States. 81 The Colombian Constitution contains a provision limiting extraditions to events taking place after December 17, The Colombian government confirmed Valencia-Trujillo s extradition on four requested counts in an Executive 73. Id. at See id. at See United States v. Kaufman, 858 F.2d 994 (5th Cir. 1988). 76. See id. at See id. 78. See id. at See id. at Id. at 1007 n See United States v. Valencia-Trujillo, 573 F.3d 1171 (11th Cir. 2009). 82. See id. at 1174.

15 2015] CHALLENGING EXTRADITION 377 Resolution, which stated that the United States could try Valencia- Trujillo only for acts taking place after December 17, The Eleventh Circuit, noting that neither the U.S. extradition request nor the Colombian government s resolutions referenced the U.S.- Colombia extradition treaty, determined that Valencia-Trujillo was not extradited pursuant to the treaty and could not raise a defense under the treaty s specialty provision. 84 The court then held that the rule of specialty applies only to extraditions pursuant to treaty, 85 and that extradition documents, such as the Executive Resolution, did not constitute treaties. 86 Interpreting Rauscher to stress the importance of treaties, 87 the Eleventh Circuit refused to recognize a customary legal obligation to observe specialty. 88 The debate over whether specialty applies to extraditions on the basis of comity is particularly important given the U.S. approach to prosecuting individuals who have been surrendered to the United States outside of the context of extradition. On the same day the Supreme Court decided Rauscher, it also issued a decision in Ker v. Illinois, a case concerning a U.S. citizen who was kidnapped from Peru and forcibly returned to the United States to stand trial for crimes allegedly committed in the United States. 89 In contrast to Rauscher, the Supreme Court held in Ker that the United States had jurisdiction over Ker regardless of the circumstances of his entry and was not limited to prosecuting specific charges. 90 Taken together, Rauscher and Ker provide that an individual brought to the United States from abroad may not be prosecuted for crimes for which he has not been surrendered except when he has not been surrendered for any crime, in which case he may be prosecuted for every crime. 91 This rationale was reinforced by the Supreme Court s 1992 ruling in United States v. Alvarez-Machain, which held that an individual kidnapped from Mexico was not entitled to the protections of the U.S See id. at See id. at Id. at See id. at See id. at See Case Note, Customary International Law Extradition Eleventh Circuit Holds that Rule of Specialty Applies Only When Provided By Treaty United States v. Valencia-Trujillo, 573 F.3d 1171 (11th Cir. 2009), 123 HARV. L. REV. 572, 572 (2009). 89. See Ker v. Illinois, 119 U.S. 436 (1886). 90. See id. at Semmelman, supra note 9, at 113 (emphasis added).

16 378 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:363 Mexico extradition treaty. 92 The Court specifically distinguished Rauscher, noting that Rauscher was extradited pursuant to a treaty and that reading specialty into a treaty was a small step to take. 93 In contrast, implying the notion that the U.S.-Mexico treaty prohibits obtaining an individual by other means is a much larger inferential leap, and one the Court declined to take. 94 While an abduction may be legally distinguishable from an extradition based on comity, and a customary rule of specialty could still apply to the latter, the Alvarez- Machain decision underscores a judicial reluctance to recognize protections not expressly granted by treaty. The U.S. jurisprudence on specialty demonstrates, at a minimum, considerable uncertainty concerning the assertion that specialty is a provision of customary international law. Although the Supreme Court s opinion in Rauscher has been interpreted as holding that specialty is a customary norm, 95 the decision itself may have been tailored to the specific political circumstances. 96 Reviews of the literature cited by the Rauscher Court and contemporary state practice question whether specialty was custom at any point in the nineteenth century, and particularly at the time of the Webster-Ashburton Treaty. 97 Subsequent U.S. decisions emphasizing the contractual nature of extradition support the claim that because extradition itself is a matter of binding international law only insofar as nations have chosen to codify it by treaty, the doctrine of specialty should similarly carry legal force only when included in that codification. 98 An assessment of whether a customary norm has emerged, which would apply to extraditions executed outside of treaties, must look to global practice and particularly opinio juris on this point. 92. See United States v. Alvarez-Machain, 504 U.S. 655 (1992). 93. Id. at Id. 95. See BASSIOUNI, supra note 1, at 543; see also Michell, supra note 69, at See Semmelman, supra note 9, at 114, See Summers, supra note 10, at 12 13, 20; see also Semmelman, supra note 9, at Case Note, Customary International Law, supra note 88, at 579.

17 2015] CHALLENGING EXTRADITION 379 B. Foreign Jurisprudence A number of foreign courts have also considered the question of specialty outside of a treaty regime, either directly or indirectly. 99 Comparatively early cases provided support for the contention that specialty was a customary norm of international law. 100 In the 1929 Hungary and Austria (Extradition) Case, the Hungarian Supreme Court considered the status of a defendant who had been extradited from Austria to Hungary in the absence of any bilateral treaty. 101 The court determined that Hungarian courts could only include additional offenses committed prior to the extradition if Austria consented, noting that the defendant himself could not waive this condition. 102 In the same year, the District Court of Amsterdam ruled on specialty in relation to an extradition from Finland. 103 In rejecting the defendant s claim of a specialty violation, the court explained that a more precise formulation of the charge in the court papers than in the pretrial documents does not violate the rule of customary international law according to which a prosecution is allowed only for those crimes for which extradition has been granted. 104 The Venezuelan Federal and Cassation Court addressed specialty two decades later in In re Dilasser. 105 Although Venezuela and France had no extradition treaty in force, Venezuela agreed to extradite Dilasser, a French citizen, to France on the basis of reciprocity. 106 After the extradition, France requested that Venezuela allow Dilasser to be tried for an offense that had not originally formed the basis of his extradition. 107 The Venezuelan court refused, turning in the absence of a treaty to principles of international law governing the subject under consideration. 108 The court found a rule, domi- 99. In some jurisdictions the doctrine of specialty is referred to as speciality. For clarity, the quotes in this section retain the original spelling used in the cited jurisdiction See United States v. Rauscher, 119 U.S. 407, (1886), for an overview of state practice through 1886; see also Summers, supra note 10, for a recent assessment of the sources considered by the Rauscher court and other literature and commentary of states on specialty prior the Rauscher decision See Hungary and Austria (Extradition) Case, 5 Ann. Dig. 275 (Hung. S.C. 1929) See id Dist. Ct. Amsterdam, 5 Ann. Dig. 275, 276 (1929) (Public Prosecutor/S. Liebermann) (Neth.) Id See In re Dilasser, 19 I.L.R. 377 (Venez. Fed. S.C. Cassation 1952) See id Id Id.

18 380 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:363 nant in doctrine, in international practice, and as a principle vigorously defended by publicists, that a person may be tried only for the offence for which he was extradited unless it has been agreed otherwise. 109 The decision then noted that the principle was contained in several bilateral treaties and laws in force in Venezuela, and that although these provisions did not bind the country in the present case, the principle must apply. 110 These cases broadly accord with Rauscher and the conclusion that specialty applies in the absence of an express treaty provision. More recent cases, however, cast doubt on the status of specialty in customary international law. In 1974, the Supreme Court of Israel rejected an extradition request from South Africa pursuant to a bilateral treaty without a specialty provision, holding that the extradition would violate a domestic law providing that a person could not be extradited without a specialty agreement in place. 111 Although South Africa, the requesting state, had a domestic provision requiring courts to adhere to specialty, the Israeli court considered this insufficient given the legislative requirement of a specialty agreement. 112 The court determined that the specialty limitation was not yet binding customary international law, pointing to a lack of clarification with regard to the scope and details of the rule. 113 Finally, the court noted that had the legislature considered customary international law a sufficient guarantee, it would not have required that specialty be ensured by agreement, as the principle would have necessarily bound both states. 114 Australian courts have addressed the applicability of specialty to non-treaty extraditions in multiple cases. While some support can be drawn from Australian jurisprudence for specialty as a principle of international law, the Australian courts have stopped short of finding specialty to be a binding customary norm. The High Court of Australia implicitly decided the issue in 1974 in Barton v. Commonwealth when it determined that the Extradition Act of did not bar the state from requesting and accepting extraditions from states with which it lacked an extradition treaty. 115 Although the 109. Id See id. at See Cowan v. Israel 29(1) PD 589 [1975] (Isr.). For a description of the case in English, see S. Z. Feller, Reflections on the Nature of the Speciality Principle in Extradition Relations, 12 ISR. L. REV. 466 (1977) See Cowan, 29(1) PD at Id. at See id See Barton v. Commonwealth [1974] 131 CLR 477 (Austl.).

19 2015] CHALLENGING EXTRADITION 381 court ultimately construed the Act to permit Australia to seek extradition from a non-treaty state, it expressed significant skepticism that such was the intent of the Act, noting that, in the absence of a treaty, there would be no speciality to protect the fugitive when he had been brought here, among other common extradition treaty protections. 116 Subsequent Australian legislation and jurisprudence has provided support for the existence of an international law norm, however. The Australian Extradition Act of 1988, which remains in force, codified the specialty doctrine. 117 The Act does not distinguish extraditions based on treaty from those based on comity, providing that an extraditable person surrendered to Australia shall only be tried for any offence in respect of which the person was surrendered. 118 In AB v. The Queen, the High Court of Australia referred to specialty as a rule of international practice. 119 The defendant had been extradited to Australia pursuant to the U.S.-Australia extradition treaty. 120 In discussing the defendant s waiver of his specialty rights under the treaty, the Court noted that the doctrine of specialty was a longstanding feature of extradition law. 121 The Australian High Court considered specialty again in Truong v. The Queen. 122 The Truong case concerned an extradition from the United Kingdom to Australia under a bilateral extradition treaty on offenses of conspiracy to kidnap and conspiracy to commit murder. 123 Once in Australia, Truong was charged with kidnapping and murder, rather than conspiracy, and argued that these charges violated the principle of specialty guaranteed by the 1988 Extradition Act. 124 The appellate court had concluded that the specialty provision of the Act was drafted to comply with Australia s international obligations and accordingly discussed the question of specialty in international law at length. 125 Judge Ormiston, whose opinion was endorsed by the other two appellate judges, surveyed practice and scholarship on specialty, including both the Rauscher decision and 116. Id. at See Extradition Act 1988 (Cth) (Austl.) Id. s AB v. The Queen [1999] HCA 46, 41 (Austl.) See id Id See Truong v. The Queen [2004] HCA 10 (Austl.) See id See id See The Queen v. Truong [2002] VSCA 27, 79 (Austl.).